Health Coverage Information for Transgender New Yorkers: What You Need to Know to Get Care

If you have insurance through your job, the NY State of Health Marketplace, or in the individual market this guide will help you access coverage for gender-affirming care.

Insurance Coverage Subject to and Exempt from NY Protections

Individual Coverage. If you live in NY and purchased individual coverage through the New York State of Health Marketplace or through a broker, these protections do apply.

Group Coverage Purchased in NY. If your employer purchased a group insurance policy in NY, these protections do apply.

Group Coverage Purchased in Another State. If your employer purchased a group insurance policy in another state (for example, your employer’s main office is in another state) these protections do not apply.

Group Coverage that is Self-funded. If your employerself-funds the coverage, meaning that your employer pays for the health services instead of an insurer, which is the case for over 50% of employers, these protections do not apply. Check with your employer.

Medicaid, Essential Plan, or Medicare. Different rules apply and check with the New York State Department of Health for Medicaid and the Essential Plan and CMS for Medicare.

Gender-Affirming Treatment Your Insurer is Required to Cover

Medically Necessary Treatment. Your insurer must cover “medically necessary treatment” if you are diagnosed with “gender dysphoria” and the benefits are otherwise covered under your insurance policy (for example surgery, hospital stays, mental health care, and office visits). If your employer has more than 100 employees, some benefits, like prescription drugs, are generally not required to be covered. Check your Certificate of Coverage. You can request a copy by calling the Member Services number on your health insurance ID card, or ask your employer. Also, just because your doctor recommends your treatment does not mean that your insurer will agree that it is medically necessary.

Cost-sharing for Treatment. You may have a deductible (dollar amount) that you need to pay before services will be covered. You may also have a co-payment (set dollar amount) or coinsurance (a percentage of the costs) that you will need to pay for treatment. Your insurer may not impose annual limits or lifetime limits on most treatment. Check your Certificate of Coverage, as the deductibles, co-payments, or coinsurance may be different depending on the services you are seeking.

Out-of-Network Services. If your insurance policy has an out-of-network benefit (usually called PPO coverage) you can get care from non-participating providers. Your cost-sharing will typically be higher for out-of-network services, and you will have to pay the difference between what your insurer pays for the service (“allowed amount”) and the provider’s actual charge.

No Discrimination. Your insurer may not discriminate against you, for example, by refusing to issue an insurance policy, terminating a policy, or charging you higher premiums because of your sexual orientation, gender identity or expression, or transgender status. In addition, your insurer must cover infertility treatment regardless of your sexual orientation, gender identity or expression, or transgender status. Also, your insurer should request additional information to determine whether you are eligible for the services and not deny the claim if your gender or sex does not correspond to the gender or sex that typically obtains the service.

Services May be Denied for Different Reasons and You Have Appeal Rights for These Denials

Medical Necessity. Insurers may deny services as not medically necessary (including because the services are considered cosmetic or experimental or investigational) through their “utilization review” process. Insurers use clinical review criteria (their medical policies, clinical guidelines, reports published by health care organizations, and peer-reviewed medical articles) which may differ among insurers, to make medical necessity determinations.

Out-of-Network Provider. You may request that your care be provided by an out-of-network provider because there is no in-network provider with the appropriate training and experience to meet your health care needs (“referral-denial”) or because your insurer can’t cover the treatment you requested in-network but will cover a similar treatment (“service denial”). These denials will start out in your insurer’s grievance process.

Off-Formulary Prescription Drugs. You may request coverage of a prescription drug that is not on your insurer’s list of covered drugs (formulary), and your insurer must have an appeal process for these denials too.

Timeframes for Insurers to Make Initial Medical Necessity and Out-of-Network Provider Decisions

Initial Medical Necessity Decisions
– Utilization Review –

Initial Out-of-Network Provider Decisions
– Grievance–

Urgent

72 hours of receipt of your request for treatment.

72 hours of receipt of your request for treatment.

Pre-Service – for care you have not received yet

3 business days of receipt of necessary information or 60 days if no information is received. Your insurer must request any necessary information within 3 business days of receiving your pre-authorization request, and you and your provider have 45 days to submit the information.

15 days of receipt of necessary information or 60 days if no is information received. Your insurer must request any necessary information within 15 days of receiving your request, and you and your provider have 45 days to submit the information.

Concurrent – for an ongoing course of treatment

1 business day of receipt of necessary information or 60 days if no information is received. Your insurer must request any necessary information within 1 business day, and you and your provider have 45 days to submit the information.

Post-Service – for care you received

30 days of receipt of necessary information or 60 days if no information is received. Your insurer must request any necessary information within 30 days, and you and your provider have 45 days to submit the information.

30 days of receipt of necessary information or 60 days if no is information received. Your insurer must request any necessary information within 30 days, and you and your provider have 45 days to submit the information.

Denial notice. Your insurer must send you written notice of their denial of treatment; however, in urgent cases you must be notified by telephone within the timeframes and written notice will follow.

Timeframes. You have 180 days to appeal a medical necessity denial or a denial of your request to see an out-of-network provider with your insurer.

Clinical Review Criteria. You have a right to request a copy of the medical guidelines your insurer used to make its decision (“clinical review criteria”) from your insurer at any time.

Out-of-Network Provider Appeal (referral denial). Your doctor must (1) submit a written statement to your insurer that the in-network providers recommended by your insurer do not have the training and experience to meet your health care needs; and (2) recommend an out-of-network provider with the appropriate training and experience to meet your health care needs who is able to provide the requested service.

Out-of-Network Provider Appeal (service denial). Your doctor must (1) submit a written statement to your insurer that the out-of-network service is materially different from the health service the insurer approved; and (2) provide two documents of medical evidence that: (i) the out-of-network service is likely to be more clinically beneficial to you than the in-network service your insurer recommended; and (ii) the risk would not be increased over the in-network health service.

Formulary Exception Process for Prescription Drugs

Time frames for insurers to make decisions:

Standard. 72 hours.

Expedited. 24 hours. Expedited formulary exceptions are available if you are suffering from a health condition that may seriously jeopardize your health, life, or ability to regain maximum function, or if you are undergoing a current course of treatment using a non-formulary prescription drug.

Final Denial. If your insurer denies your formulary exception request, that denial is considered a final adverse determination and you can then request an external appeal. You do not need to appeal that denial with your insurer.

Applicability. Individual & small group coverage and, beginning on renewal in 2020, large group coverage.

External Appeals

Right to an External Appeal. If your insurer upheld a denial based on medical necessity (including cosmetic denials, an experimental or investigational treatment, an out-of-network service, an out-of-network referral, or a non-formulary prescription drug) you have a right to an external appeal with medical experts that are independent from your insurer.

Timeframe for You to Submit an External Appeal. Four months from the date of the final adverse determination from the first level of appeal with your insurer or the waiver of the internal appeal process. If your insurer offers a second-level internal appeal, you do not have to file one, but if you do, you must still submit an external appeal to DFS within four months of the first appeal decision.

Timeframe for the External Appeal Agent to Make a Determination.

Standard. 30 days (or 72 hours for a formulary exception).

Expedited. 72 hours (or 24 hours for a formulary exception), even if all your medical information has not yet been submitted to the external appeal agent.

How to Submit an External Appeal. Complete the New York State External Appeal Application. There may be a $25 fee, not to exceed $75 in a single plan year. The fee is waived if you are covered under Medicaid, Child Health Plus, Essential Plan, or if the fee will pose a hardship. The fee will be returned to you if the external appeal agent overturns the denial.

Information on Surprise Bills

A surprise bill happens when:

Hospital or Surgical Center. You receive services from an out-of-network doctor at an in-network hospital or ambulatory surgical center and (1) an in-network doctor was not available; (2) an out-of-network doctor provided services without your knowledge; or (3) unforeseen medical circumstances arose at the time the health care services were provided. It is not a surprise bill if you chose to receive services from an out-of-network doctor instead of from an available in-network doctor.

Referral. You are referred by your in-network doctor to an out-of-network provider and you did not sign a written consent that you knew the services would be out-of-network and would result in costs not covered by your insurer. A referral to an out-of-network provider occurs (1) during a visit with your in-network doctor, an out-of-network provider treats you; (2) your in-network doctor takes a specimen from you in the office (for example, blood) and sends it to an out-of-network laboratory or pathologist; or (3) for any other health care services when referrals are required by your insurer.

What to do if you Receive a Surprise Bill

You will be protected from a surprise bill and will only be responsible for your in-network co-payment, co-insurance or deductible if you fill out and sign an Assignment of Benefits form and return it to your insurer and out-of-network provider.